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WATER LOG Volume 21, Number 3, 2001

A Legal Reporter of the Mississippi-Alabama Sea Grant Consortium

Supreme Court Determines Wetlands Landowner Development Rights Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001). Roy A. Nowell, Jr., 3L In late June, the United States Supreme Court issued a ruling in the case of Palazzolo v. Rhode Island, in which the Court rejected Anthony Palazzolo’s claim that his land was taken in violation of the Fifth Amendment. The Court addressed three issues in the case: first, whether the case was ripe for adjudication; second, whether Palazzolo had the right to sue based on his successive ownership of the property; and third,

whether the Rhode Island Resources Management Council’s (Council) rejection of Palazzolo’s development proposal constituted an illegal taking under the Fifth Amendment. Background Anthony Palazzolo owns waterfront property in Rhode Island which the law of the state designates as wetlands. The saga behind his ownership of the property in question dates back to 1959, when he and associates formed Shore Gardens, Inc. (SGI) and purchased the property. Eventually, Palazzolo purchased See Palazzolo, page 9

Beach Access Protected by the First Amendment Leydon v. Town of Greenwich, 257 Conn. 318 (2001). David N. Harris, Jr., 3L The third round of the highly publicized legal battle over public access to Connecticut beaches has been decided in favor of the public. The Connecticut Supreme Court affirmed the Connecticut Appellate Court decision that a Greenwich ordinance restricting access to a municipally owned park was unenforceable. The challenged ordinance allowed only town residents access to beach-park areas. But, unlike the Appellate decision which relied heavily on the citizens’ right to use the beach under the Public Trust Doctrine, the Connecticut Supreme Court affirmed the decision on the federal and state constitutional principles of the First Amendment. d

In This Issue . . . Supreme Court Determines Wetlands Landowner Development Rights . . . . . . . . 1 Beach Access Protected by the First Amendment . . . . . . . . . . . . . . . . . . . 1 “Deep Ripping” in Wetlands Prohibited by the Clean Water Act . . . . . . . . . . . . . . . 2 From the Editors’ Desks . . . . . . . . . . . . . . . . 3 National Sea Grant Law Center Awarded to The University of Mississippi . . . . . . . . 4 Research Counsel Position Announcements . . 5 Fifth Circuit Vacates Referral to Special Master . . . . . . . . . . . . . . . . . . . . . . 6 Special Masters Play Vital Role in Environmental Suits . . . . . . . . . . . . . . . . . 8 U.S. Recovers for Sanctuary Damage in State Waters . . . . . . . . . . . . . . . . . . . . 12 2001 Alabama Legislative Update . . . . . . . . 14 Lagniappe . . . . . . . . . . . . . . . . . . . . . . . . . . 15 California Challenges Federal Oil and Gas Leases . . . . . . . . . . . . . . . . . 16


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“Deep Ripping” in Wetlands Prohibited by the Clean Water Act Borden Ranch Partnership v. U.S. Army Corps of which metal prongs are thrust into the soil and Eng’rs, 261 F.3d 810 (9th Cir. 2001). dragged away by heavy machinery. In the fall of 1993, the Environmental Protection Agency (EPA) and the John Treadwell, 3L Army Corps of Engineers (Corps) asserted jurisdiction, informing Tsakapoulos that he could not continIn a 2-1 decision, the United States Court of Appeals ue deep ripping activities in these wetland areas withfor the Ninth Circuit held that deep ripping, a out a § 404 permit. Tsakapoulos filed suit challenging process in which metal prongs are dragged by a trac- the government’s authority to regulate this activity. tor through the soil so water can drain from the area, falls under the authority of the Clean Water Act Deep Ripping and the Normal Farming Exception (CWA).The court also concluded that the tractors Tsakapoulos maintained that deep ripping is merely employed during the deep ripping process constitute another form of plowing and should fall into the a point source and that such activity requires a CWA CWA’s exemption for normal farming activities. This § 404 permit. assertion was summarily rejected. According to the court, the CWA’s “recapture provision” does not Background exempt any normal farming process, including plowIn June of 1993, Angelo Tsakapoulos acquired Borden ing, that damages water flow. When Congress enacted Ranch, an 8,400 acre tract used predominantly for the CWA, one of its intentions was to “prevent concattle grazing, with the intentions of converting the version of wetlands to dry lands.”2 As a result, activiarea into a vineyard and orchard. There are vernal ties that damage a wetland’s normal hydrological funcpools, swales and intermittent drainage areas located tions are not exempt. Relying on evidence that when on the property that depend upon a hard layer of soil Tsakapoulos penetrated the clay pan, the water flow called “clay pan” which prevents water from seeping was harmed, the district court determined that the into the ground. 1 Because vineyards and orchards EPA and the Corps properly exercised authority over require deep root systems, Tsakapoulos had to break the deep ripping conducted by Tsakapoulos. up the clay pan using “deep ripping,” a process in The maximum civil penalties for violating the CWA is $25,000 per day for each violation.3 In this case, the district court counted each pass through the WATER LOG is a quarterly publication reporting on legal issues affecting the Mississippi-Alabama coastal wetland slopes as a separate violation. Because this calarea. Its goal is to increase awareness and underculated into 348 separate violations, the court could standing of coastal problems and issues. have imposed a maximum penalty of over $8.9 milTo subscribe to WATER LOG free of charge, contact: Mississippilion dollars, however, Tsakapoulos was ordered to pay Alabama Sea Grant Legal Program, 518 Law Center, University, a $1.5 million dollar fine or a $500,000 fine and if MS, 38677, phone: (662) 915-7775, or contact us via e-mail at: four acres of wetlands were restored. waterlog@olemiss.edu . We welcome suggestions for topics you would like to see covered in WATER LOG. Editors: Tammy L. Shaw, J.D. Kristen Fletcher, J.D., LL.M. Publication Design: Waurene Roberson Research Associates: David Harris, 3L Roy A. Nowell, Jr., 3L Craig J. Pake, 3L Yoshiyuki Takamatsu, 3L John Treadwell, 3L For information about the Legal Program’s research, ocean and coastal law, and issues of WATER LOG, visit our homepage at

http://www.olemiss.edu/orgs/masglp

The Ninth Circuit’s Decision On appeal, the Ninth Circuit upheld the lower court’s decision as it related to deep ripping in the drainage areas. Tsakapoulos argued that the CWA should not regulate deep ripping because the process does not involve any addition of a pollutant. According to Tsakapoulos, deep ripping only “churns up soil that is already there” and “[places] it back basically where it came from.” The Corps responded that Tsakapoulos added a pollutant when he punched holes in the wetland so the water could drain. The court agreed, not-


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military strength. . . we are a nation of resources both human and environmental. We have proven our human resources for years but saw amazing disOn September 10, the Water Log staff was preparing plays of strength and leadership in rescue efforts folfor this issue, reviewing ocean and coastal case law lowing 9/11. And, no matter what our individual and marine policy changes, editing stureaction is to the attacks of September 11th, dents’ articles, and arranging the issue we will continue to be leaders at a local, layout. We were concentrating on priorinational, and international level to proty issues: the debates surrounding fisheries management techniques, inconsistent implementation tect our human and environmental resources. The of wetland laws, and the effort to increase the focus of staff at Water Log recognizes you, our subscribers, as the nation and world to the conservation of fragile part of that group of people that are dedicated to leadmarine resources. A day later, we were left in awe after ing the way through management, care, and conservathe attacks in Washington and New York City. At first, tion of our marine resources. even the most active environmental listserves were quiet except for the words of support sent here to the Along with the bravery of the rescuers, both at the World Trade Center and at the Pentagon, we salute United States from all across the world. your work in this “new world” that we face following th Slowly, people returned to their jobs, to their lives, to September 11 . the work that lies in front of us as managers and advocates of the marine world. For we are, after all, more Sincerely, Kristen M. Fletcher than a nation of skyscrapers, more than a financial and Tammy L. Shaw

From the Editors’ Desks

I have been with the Mississippi-Alabama Sea Grant Legal Program since the summer of 1998, first as a law student research associate and later as Research Counsel. Last year, I took over as the editor of Water Log. My work here has been rewarding and fulfilling and the knowledge and experience that I have gained is invaluable. This issue of Water Log marks my last as editor and this week, my last as Research Counsel. I have accepted a position with a law firm in Mobile, Alabama, where I will be near my family and many friends. I know that Water Log will continue to be an important and useful source for information on coastal and ocean law and policy, and I am proud to have been a part of the MississippiAlabama Sea Grant Legal Program. Sincerely,

Tammy L. Shaw (Editors’ note: Tammy can be reached by Email at: tlshaw61@cs.com)

In this somber and uncertain time in our nation, the attorneys and staff of Water Log would like to extend our condolences to the families of those men, women and children who were lost in the tragedy of September 11th.


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National Sea Grant Law Center Awarded to The University of Mississippi Center Begins Service February 1, 2002

Kristen M. Fletcher, J.D., LL.M. The National Sea Grant Office and National Oceanic and Atmospheric Administration recently announced that the Agency’s first National Sea Grant Law Center will be housed at The University of Mississippi. The Sea Grant Law Center is being established to “coordinate and enhance Sea Grant’s activities in legal scholarship and outreach related to coastal and ocean law issues.” In recent years, as the development of marine resources has evolved and received greater attention, the importance of addressing the legal issues that pertain to marine resources has become more evident. As a result, the National Sea Grant Office proposed the creation of a Sea Grant Law Center to disseminate information about ocean and coastal laws and policies, coordinate ocean and coastal law researchers, and provide Sea Grant College Programs a source of critical analysis of proposed laws and policies. At The University of Mississippi, the Sea Grant Law Center will integrate the efforts of ocean and coastal law research centers nationwide and provide outreach and advisory services to the National Sea Grant College Program and its constituents. The Law Center’s objectives are to:

• answer law and policy questions of the National Sea Grant Office, OAR, NOAA, and the thirty state Sea Grant College Programs.

The Sea Grant Law Center will be operated in conjunction with the Mississippi-Alabama Sea Grant Legal Program, enhancing its outreach and research elements. However, the Mississippi-Alabama Program will continue to offer its traditional services including the legal advisory service, outreach efforts, and the Water Log Legal Reporter. We look forward to expanding the Legal Program’s efforts of the last thirty years to a national scope but remain committed to the constituents who have helped to develop the expertise of the Legal Program in Mississippi, Alabama, and the Gulf of Mexico region. The Sea Grant Law Center will officially begin offering its services on February 1 , 2 0 0 2 . Un t i l then, we will be preparing for its establishment by • enable existing Sea Grant Legal Programs, Sea constructing the Grant-funded marine policy researchers, and website and conmarine law institutes across the country to ducting intercoordinate and combine research and outreach views for a Center Research Counsel (see page 5). We efforts; will also be moving offices across campus to Kinard Hall to incorporate both the Legal Program and the • establish an on-line marine law digest, quarterSea Grant Law Center. We welcome your visits, comly legal reporter, and Internet site; ments and questions. • conduct research on legal issues affecting the Access our web site at nation’s oceans and coasts and disseminate http://www.olemiss.edu/orgs/SGLC research results through publications, presentaor e-mail us at sealaw@olemiss.edu . tions, and on-line resources; and,


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POSITION ANNOUNCEMENT

Research Counsel, Mississippi-Alabama Sea Grant Legal Program Starting Date: January 2, 2002

Position open until filled or until adequate applicant pool is obtained.

Duties: Conduct research on ocean, coastal, natural resource, and environmental legal issues; prepare reports and articles for publication; provide assistance to governmental agencies regarding statutes, regulations, and case law; assist in the preparation and publication of WATER LOG; travel to conferences to present research papers; supervise law student research associates; pursue funding through the writing of grant proposals; and travel to the Gulf Coast to provide advisory service to state and local agencies. Qualifications: Bachelor’s Degree; Law Degree by starting date; strong law school academic record; relevant course work and/or work experience and enthusiasm in one or more of the following: ocean/coastal, natural resources, environmental law; demonstrated ability to conduct research and writing; and, membership in or commitment to acquire membership in the Mississippi Bar. Send résumé of experience and education, copy of law school transcript, 3-5 page research and writing sample, 3 references and other pertinent information to: University Employment Office, Paul B. Johnson Commons, University of Mississippi, P.O. Box 1848, University, MS 38677-1848. For complete job announcement or more information, e-mail Kristen Fletcher at kfletch@olemiss.edu or visit: http://www.olemiss.edu/orgs/masglp/ The University of Mississippi is an EEO/Title VI/Title IX/Section 504/ADA/ADEA employer.

POSITION ANNOUNCEMENT

Research Counsel, National Sea Grant Law Center Starting Date: February 1, 2002

Position open until filled or until adequate applicant pool is obtained.

Duties: Assist in establishment of National Sea Grant Law Center; organize and develop national Marine Law and Policy Network; conduct research on ocean, coastal, natural resource, and related environmental legal issues; prepare reports and articles for publication; provide assistance to governmental agencies and Sea Grant College Programs regarding statutes, regulations, and case law; assist in the preparation and publication of the Sea Grant Legal Reporter and a biannual Legal Digest; aid in maintenance of web-based resources; travel to conferences to present research papers; supervise law student research associates; and pursue funding through grant proposals. Qualifications: Bachelor’s Degree; Law Degree by starting date; strong law school academic record; relevant course work and/or work experience and enthusiasm in one or more of the following: ocean/coastal, natural resources, environmental law; demonstrated ability to conduct research and writing; and, membership in or commitment to acquire membership in a state bar. Send résumé of experience and education, copy of law school transcript, 3-5 page research and writing sample, 3 references and other pertinent information to: University Employment Office, Paul B. Johnson Commons, University of Mississippi, P.O. Box 1848, University, MS 38677-1848. For complete job announcement or more information, e-mail Kristen Fletcher at kfletch@olemiss.edu or visit: http://www.olemiss.edu/orgs/SGLC/ The University of Mississippi is an EEO/Title VI/Title IX/Section 504/ADA/ADEA employer.


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Fifth Circuit Vacates Referral to Special Master Sierra Club v. Clifford, 257 F.3d 444 (5th Cir. 2001). Yoshiyuki Takamatsu, 3L

because the case had been pending for two years, the filings were voluminous and contained highly technical documents and declarations, and the issues concerned compliance with complex state and federal regulations. The special master initially conducted two hearings and issued a report recommending that the district court order the EPA to file the administrative record and a schedule for establishing and implementing TMDLs in Louisiana. The district court adopted the report as its opinion and, again, referred the case to the special master for review. According to the order, the EPA submitted the administrative record and a 12-year schedule to establish and implement TMDLs. The special master held a hearing and a one-week trial and issued a second report rejecting the EPA’s 12-year schedule and instead setting a 10-year schedule. The district court entered a judgment against the EPA essentially adopting the special master’s second report without conducting its own review. The EPA appealed and challenged, among other things, the district court’s decisions to refer the case to the special master. On appeal, the Fifth Circuit limited its discussion to the district court’s decisions to refer the case to a special master.

In July, the United States Court of Appeals for the Fifth Circuit vacated a district court’s decision to refer an environmental lawsuit to a special master. The Sierra Club and Louisiana Environmental Action Network, Inc. (Sierra Club) brought an action challenging Louisiana’s and the Environmental Protection Agency’s (EPA) failure to comply with the Clean Water Act. The Act imposes on the EPA a duty to identify and establish total maximum daily loads (TMDLs) of pollutants for impaired waters. Before trial, the District Court for the Eastern District of Louisiana appointed a special master pursuant to Rule 53 of the Federal Rules of Civil Procedure. A court may appoint a special master to assist it in specific judicial duties, such as difficult computation of damages or when some “exceptional condition” requires the reference. (See page 8 for details on special masters.) The district court cited its congested docket and unfamiliarity with the issues presented as necessitating the referral to the master. On appeal, the Fifth Circuit held that the decisions to refer were improper and vacated the final judgment, remanding the case for Appointment of Special Master and La Buy further proceedings. A district court may appoint a special master to aid it in the performance of specific judicial duties, but a Background special master may not displace the court.3 Under Rule Under the Clean Water Act, states are required to iden- 53(b), reference to a special master shall be the exceptify, establish and submit to the EPA TMDLs of pollu- tion and not the rule and shall be made only upon a tants for states’ impaired waters.1 Louisiana had failed showing that some exceptional condition requires it.4 to comply with the Act for 13 years yet continued to In La Buy v. Howes Leather Co., the United States receive federal funding for TMDL implementation. Supreme Court held that a congested docket, the When the State finally submitted a TMDL, the EPA complexity of issues, and the extensive amount of time failed to either approve or disapprove the submission required for a trial did not, either individually or as a within the 30 day deadline imposed by the Act. The whole, constitute an exceptional condition.5 In an earSierra Club challenged the EPA’s failure to exercise its lier decision, the Fifth Circuit applied La Buy holding mandatory duty, in light of the State’s protracted inac- that a crowded docket and the plaintiff ’s filing of sixtion, to identify and establish such TMDLs and to teen different lawsuits in the same court did not conestablish a schedule by which TMDLs would be imple- stitute an exceptional condition.6 mented. Faced with the parties’ summary judgment For the TMDL dispute, the Fifth Circuit found motions, the district court referred the motions to a that the district court’s stated reasons did not support a special master pursuant to Rule 53(b) of the Federal conclusion that an exceptional condition existed: the Rules of Civil Procedure.2 The district court stated that fact that a case had been pending for two years was not the exceptional condition requirement was met so exceptional; the voluminous filings containing high


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Fifth Circuit, from page 6

ly technical documents and declarations were considered the norm for modern federal litigation; and a significant number of cases in federal courts concern compliance with state and federal regulations. The Fifth Circuit noted that the district court’s unfamiliarity with the subject matter could hardly excuse the court’s obligation to carry out its judicial function. The Court noted that if the district court’s reasons were sufficient to constitute an exceptional condition under Rule 53(b), references to special masters would be the rule rather than the exception. Second, the Fifth Circuit addressed the Sierra Club’s argument that the Court should only reverse the decision if it found that the special master’s decision was erroneous. The Court did not decide the issue but noted that absent the district court’s own findings and conclusions, it could not perform a meaningful review of the judgment, especially because the case involved complex factual and legal issues. Finally, the Fifth Circuit rejected the Sierra Club’s contention that cases evaluating massive, long-term government programs were particularly suited for the appointment of a special master. While agreeing with

the contention, the Court found that whether or not references were valid must always turn on their compliance with Rule 53(b). Conclusion Recognizing that this decision will add to the delay and expense already suffered by the Sierra Club and the citizens of Louisiana, the Fifth Circuit vacated the orders to refer the case to the special master, the orders adopting the special master’s recommendations, and the final judgment. The case was remanded to the district court to make its own determinations. ENDNOTES 1. 33 U.S.C. § 1313(d) (2001). 2. Summary judgment is a procedural device available for prompt and expeditious disposition of controversy without trial when there is no genuine issue of material fact. Black’s Law Dictionary, 1449 (7th ed. 1999). 3. La Buy v. Howes Leather Co., 352 U.S. 249, 256 (1957). 4. Fed. R. Civ. P. 53(b). 5. 352 U.S. at 258-59. 6. Piper v. Hauck, 532 F.2d 1016, 1019 (5th Cir. 1976).

Ripping, from page 2

ing that activities which damage the ecological integrity of a wetland can be regulated without the discharge of a new material. As a result, the court held that the CWA regulates deep ripping when employed to drain a wetland. The court also rejected Tsakapoulos’ argument that a plow is not a point source regulated under the CWA. According to the court, the CWA broadly defines a point source as “any discernible, confined, and discreet conveyance.”4 The court reasoned that the statutory definition of a point source was met because tractors and bulldozers were utilized to drag the deep ripping prongs through the soil. Finally, Tsakapoulos argued that the district court erred by counting each pass through the wetlands with the deep ripper as a separate violation, claiming the maximum penalty should be $25,000 for every day the deep ripper was used. The court rejected his interpretation because the statute clearly provides for a “maximum penalty ‘per day for each violation’ ”5 noting that it would encourage violators to commit all their infractions in one day. While the court upheld the government’s authorit over deep ripping in the drainage areas citing a

recent U.S. Supreme Court case, the court decided that the Corps does not have jurisdiction over isolated, vernal pools.6 Therefore, the district court’s ruling with regard to these isolated wetlands was reversed. ENDNOTES 1. Borden Ranch Partnership v. U.S. Army Corps of Eng’rs, 261 F.3d 810 (9th Cir. 2001). Vernal pools generally form during the rainy season. However, they usually dry out during the summer. Because swales are essentially sloped wetlands, aquatic plant and wildlife can move freely through the area. These wetlands act as a filter by removing sedimentation from the flowing waters. Swales also assist in curtailing erosion. Intermittent drainages are streams that form so stormwater can be carried away. 2. Borden Ranch Partnership, No. 00-15700 at 10957 (citing United States v. Akers, 785 F. 2d 814, 822 (9th Cir. 1986)). 3. 33 U.S.C. § 1319 (d) (2001). 4. 33 U.S.C. § 1362 (14). 5. Borden Ranch Partnership, No. 00-15700 at 10959. (quoting 33 U.S.C. § 1319 (d)). 6. Solid Waste Agency of Northern Cook Co .v. Army Corps of Engineers 531 U S 139 (2001)


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Special Masters Play Vital Role in Environmental Suits Roy A. Nowell, Jr., 3L The Federal Rules of Civil Procedure provide for the appointment of a “special master” in cases in which the issues are extremely difficult, the computation of damages is complicated, or when there are exceptional circumstances associated with a case. Circumstances sometimes demand the expertise of a special master in the environmental law setting. A “special master” is a representative of the court appointed to hear a case involving difficult or specialized issues. The role of a special master in a lawsuit is similar to that of a judge, in that she hears from both parties, examines evidence, is presented with witness testimony, and makes recommendations to the court on the resolution of the case. In non-jury trials, the court must accept the master’s findings of fact unless they are clearly erroneous. In cases tried by a jury, the master’s findings are admissible as evidence and may be submitted to the jury. While environmental cases seem especially suited for the appointment of a special master because of the complexity of the issues and the variety of environmental regulations and statutes, the appointment of a special master must meet stringent standards. Appellate courts have consistently held that the appointment of a special master should be reserved for unique and special situations, and can deem that appointment inappropriate. Most recently, the Fifth Circuit made this determination in Sierra Club v. Clifford regarding the setting of Total Maximum Daily Loads, or TMDLs, for Louisiana. (See page 6 for the case analysis). Appointment of a Special Master The authority for the appointment of a special master is provided by Rule 53 of the Federal Rules of Civil Procedure.1 The rule states that the designation of a special master to a case should not be a common occurrence, but rather is an exception to the typical resolution of a case. Any court may appoint a special master if the circumstances of the case meet the requirements of Rule 53, but the consensus among courts clearly indicates that these requirements are stringent. In a jury case, appointment of a special master should onl be made if the issues are complicated

and in cases to be tried without a jury, the designation of a special master should only be made if the computation of damages is difficult. If the computation of damages is not difficult, deference to a special master requires a showing of an “exceptional condition.” This requirement has resulted in the most scrutiny by appellate courts; although not entirely impossible, a showing of an exceptional condition has proven to be a difficult burden for many courts to meet. Case Law and Special Masters The leading case regarding special masters is La Buy v. Howes Leather Company. 2 La Buy was an anti-trust lawsuit, which was appointed to a special master by a district court judge. The appellate court, and subsequently, the U.S. Supreme Court, analyzed Rule 53 in great detail and specifically addressed the kinds of circumstances that constitute an exceptional condition under Rule 53. The court held that congestion of the court docket, general complexity of a field of law, and extended length of time for a trial were not sufficient to constitute exceptional conditions. Many courts have applied the approach taken in La Buy and have applied a strict standard for using a special master. One such environmental case, United States v. State of Washington, involved a dispute over the rights to shellfish, which was brought under the C o m p re h e n s i v e E n v i r o n m e n t a l Re s p o n s e , Compensation, and Liability Act of 1980 (CERCLA).3 A special master was appointed to hear the case, and a petition was presented to revoke the authority of the special master to preside at trial and recommend liability. The court determined that appointment a special master to determine the merits of the case was inappropriate. However, that court held that the master had broad authority to determine pretrial matters, such as discovery and stipulations of fact and, in the case of liability, has the authority to determine the extent of the damages. Several other courts have also used La Buy as a basis for restricting the discretion of lower courts to appoint a special master. In the recent case of Sierra Club v. Clifford, the court determined that the district court abused its discretion by appointing a special master in a case involving the Federal Water Pollution Control Act Amendments of 1972 4 The district


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Special Masters, from page 8

court listed several reasons for referring the case to a special master, which included the length of the case reaching over two years and the presence of a high number of technical documents. However, the court ruled that these conditions were not sufficient to warrant exceptional conditions. In fact, the court stated that voluminous documents and lengthy trial were the norm for modern federal litigation, rather than exceptional conditions. Although the standards for the appointment of special masters are rigorous, meeting the requirements is not impossible. The case of Cronin v. Browner listed several situations in which referral to a special master is appropriate, including enforcement of a judicial decree, assistance in settlement negotiations, and determining the validity of a preliminary injunction and complex litigation over a technical regulation concerning thousands of industrial facilities.5 Finally, in the case of Active Products Corporation v. Choitz, the court reaffirmed the position that special masters were appropriate to handle settlement matters in a case involving CERCLA.6 In addition,

the court held that the appointment of a panel of special masters in that case was appropriate because of the large number of parties involved. Conclusion The appointment of a special master to a case serves as a valuable tool in complicated situations, but the consensus among the courts is that such appointment should be reserved for exceptional cases. Environmental cases often involve complicated legal scenarios, primarily because of the extensive legislative requirements involved in environmental litigation but the stringent requirements for appointing a special master must be met, or the referral to the master will be deemed inappropriate. ENDNOTES 1. FED. R. CIV. P. 53. 2. La Buy v. Howes Leather Company, 352 U.S. 249 (1957). 3. United States v. Washington, 135 F.3d 618 (9th Cir. 1998). 4. Sierra Club v. Clifford, 257 F.3d 444 (5th Cir. 2001). 5. Cronin v. Browner, 90 F.Supp.2d 364 (S.D.N.Y. 2000). 6. Active Products v. Choitz, 163 F.R.D. 274 (1995).

Palazzolo, from page 1

the other associates’ interest in the property, thus rendering him the sole owner of the property. Over the next few years, he made several attempts to develop the property, but all proposals were denied by the Rhode Island Department of Natural Resources. In 1971, the land was deemed coastal wetlands by laws enacted by the Council. In addition, SGI’s corporate charter was revoked in 1978 for failure to pay taxes. As a result of the revocation, Palazzolo became the corporation’s sole shareholder. In 1983, he resumed his efforts to develop the land, and again, the Council rejected the proposal. Subsequently, Palazzolo brought a takings action against the Council. In 2000, the Rhode Island Supreme Court determined that Palazzolo’s takings claim was not ripe, he had no right to bring the claim, and that he had not been deprived of all economically beneficial uses of his property, thus rendering his takings claim ineffective. As a result, Palazzolo chose to continue his fight and appealed the decision to the United States Supreme Court. Palazzolo’s Right to Sue The owner of an interest in property is deemed to be aware of previousl enacted laws regarding that prop-

erty and cannot later bring a takings claim. In other words, a landowner is considered to have notice of any restrictions or limitations on the property. However, as the Rhode Island Supreme Court noted, the Takings Clause of the Fifth Amendment provides an exception if the government action is “so unreasonable or onerous as to compel compensation,” subsequent owners may be allowed to bring a takings claim.1 In effect, this concept prevents governmental entities from taking action that is normally deemed an unconstitutional taking simply because the ownership of property has changed hands. In this case, the U.S. Supreme Court ruled that Palazzolo held the right to sue even though he was a subsequent owner of the wetland property, finding that unconstitutional state action should not be ignored merely because title to the property passed to another landowner. Instead, the nature of the government action should be determinative of whether a taking has occurred. Therefore, even though Palazzolo was a subsequent owner of the property, he still had the right to sue. The Court did not state that every subsequent landowner has the right to sue, but it clearly stated that no blanket rule exists prohibiting a subsequent landowner from bringing suit simpl


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Palazzolo, from page 9

because she was not the owner of the property when the legislation was enacted.2 The Ripeness Doctrine The doctrine of ripeness prevents courts from hearing cases that are too premature for a court to make a ruling. The U.S. Supreme Court has held that a claim is not ripe unless a final decision has been reached by the government agency in charge of enforcing the regulation.3 The Court determined that the Rhode Island Supreme Court improperly ruled that Palazzolo’s claim was not ripe for the Court to make a ruling. The Rhode Island Supreme Court had determined that Palazzolo had not used every possible avenue to seek a use of his property and still had options for development to pursue. The Court held that the state agency had addressed the issues presented concerning Palazzolo’s proposal, and by rejecting the proposal, had made a final decision, thereby satisfying the requirements of the ripeness doctrine. In addition, the Council cited no instances in which Palazzolo failed to comply with the requirements of the application process and, as a result, determined that Palazzolo’s claim was ripe for adjudication. The Taking Determination The purpose of the Takings Clause is to prevent the government from requiring individual landowners to bear a burden that should be shared by the entire public.4 A regulatory taking has occurred if all economically beneficial uses of the property have been stripped by the government action.5 Courts are split on the issue of whether the deprivation of economic value should be considered in light of the entire property or the specific parcel in dispute. If only the parcel in dispute is used for determination of a taking, it is likely that a court will rule that the property has been rendered valueless, but if the property is viewed as a whole, a court will probably hold that the property still has value. The Court did not address the issue of whether the prohibition on the property should be viewed in light of the entire property or just the parcel at issue, but found that because he still had $200,000 in development value on his property and could still build a large residence on 18 acres of the land, that Palazzolo still had economic use of a considerable amount of his property. Thus, the Court ruled that the Council’s rejection of Palazzolo’s development proposal did not

constitute a taking because Palazzolo was not deprived of all economically beneficial use of his land. Where a regulation falls short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action. The Supreme Court remanded the case for an analysis of these factors. Conclusion Although a majority of the Court concluded that the government had not taken all economically beneficial use of Palazzolo’s property, the resulting concurrences and dissents exemplified the differing opinions of the Court. For instance, Justices Ginsburg and Breyer dissented arguing that the decision of the Rhode Island Supreme Court should have been affirmed. Regardless of the differences, Palazzolo must now await the determination of the Rhode Island Supreme Court to determine if a taking has occurred on his property. ENDNOTES 1. Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001). 2. The question remains, then, whether Palazzolo’s claim can be distinguished because of his claim on the property title dating back to 1959. 3. Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). 4. Armstrong v. United States, 364 U.S. 40, 49 (1960). 5. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).


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Page 11

Leydon, from page 1

Background In 1995, Brenden Leyden, a Connecticut resident, filed suit after being denied access to the municipallyheld park known as Greenwich Point. Leyden wanted to jog along the beach area of the park, but was turned away from the park because a town ordinance denied access to nonresidents. Pursuant to the ordinance, a nonresident may only visit the beach when accompanied by a town resident. Leydon subsequently filed suit, arguing that the park and beach were a traditional public forum open to all citizens. He also argued that under the public trust doctrine, the lands were held by the state in trust for use by citizens of the state, not just for use by town residents. The town argued that Leydon's desire to jog along the beach was not the type of expressive activity protected by the laws regulating a traditional public forum.1 The town argued further that the Connecticut State Legislature abolished the state common-law doctrine of public trust by a special act in 1919 which allowed the town to "establish, maintain and conduct public parks . . . [and] bathing beaches . . . for the use of the inhabitants of [the] town." 2 The trial court upheld the ordinance in 1998, disagreeing with Leydon's contention that it improperly denied nonresidents access to the beach.3 The Connecticut Appellate Court reversed the decision finding that the ordinance violated the public trust doctrine, pursuant to which the state holds lands under tidal and navigable waterways in trust for the use by all state citizens. Relying on over 100 years of case law, the court noted that Connecticut has held its wet sand beach areas open to the public for fishing, recreation, and commerce activities. The Connecticut Supreme Court agreed with the Appellate Court decision that state residents may have access to the municipal park and beach. However, the Connecticut Supreme Court chose not to address this dispute based on the public trust doctrine but rather focused almost exclusively on the First Amendment argument that the beach was a traditional public forum. The Court decided that nonresident access to the beach was protected by the right of freedom of expression given to all citizens.

Constitution, citizens are allowed to freely gather and conduct activities such as political debate and recreation. A “traditional public forum” is a place where the government customarily allows assembly and free debate of ideas, and includes areas such as streets and parks where the government holds title to the land but allows these areas to be used by its citizens.4 The United States Supreme Court has held that the government may only limit expression in these areas based on time, place, and manner of the expression but not its content. The regulation must not restrict specific types of expression and must be made so specific as to help further an important governmental interest.5 In other words, the government must have some very important reason, like public safety, in order to limit the use of these public areas. The Connecticut Supreme Court found Greenwich Point to be a traditional public forum because it had the characteristics of a public park. Several of the characteristics enumerated by the Court were the presence of shelters, ponds, a marina, a parking lot, and picnic areas.6 The Court found that the ordinance restricting access to only town residents violated the rights of nonresidents to participate in expressive activities, and that the town failed to show why the ordinance protected an important town interest. Conclusion Although the Connecticut Supreme Court did not affirm the Appellate Court's holding based on the public trust doctrine, the end result was to allow access by nonresidents to the municipal park and beach, rendering the town ordinance unenforceable. The town's leaders were advised that because the Connecticut Supreme Court determined the ordinance violated the state constitution, a favorable ruling probably would not be forthcoming and declined to appeal the decision.7

ENDNOTES 1. Leydon v. Greenwich, 257 Conn. 318, 321 (2001). 2. 18 Spec. Acts 103, No. 124 (1919). 3. Leydon at 321. 4. Hague v. CIO, 703 U.S. 496, 515 (1939). 5. Perry Educational Assn v. Perry Local Educators’ Assn, 460 U.S. 37, 45 (1983). Beach Access Protected By Public Forum Law 6. Leydon at 326. Under freedom of expression protections provided by 7. Greenwich Ends a Battle to Bar Its Beaches, N.Y. the First Amendment and the Connecticut State TIMES, Aug. 31, 2001, B2.


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Vol. 21:3

U.S. Recovers for Sanctuary Damage in State Waters United States v. Great Lakes Dredge & Dock habitats from destruction.1 The NMSA delegates the responsibilities to govern the management of these Company, 259 F.3d 1300 (11th Cir. 2001). federally protected marine areas to the National Oceanic and Atmospheric Administration (NOAA)2 Craig Pake, 3L and imposes civil liability on “any person who In July, the Eleventh Circuit addressed whether the destroys, causes the loss of, or injures any sanctuary National Marine Sanctuaries Act (NMSA) autho- resource.”3 The U.S. may bring an action against any rizes damages to the United States for injuries to person who is liable for costs to fix the destroyed state owned seabed property in the Florida Keys area and for damages.4 “Damages” include, the cost National Marine Sanctuary. The court determined of restoring or obtaining the equivalent of the sancthat a dredging contractor should be held liable for tuary resource and the value of the restoration, a subcontractor’s actions and that the trial court damage assessment costs, and reasonable monitorerred in requiring “no action” for repairing the ing costs.5 The district court entered a judgment against damaged seabed. Great Lakes for $368,796.97 which included the government’s assessment cost, compensatory and Background In 1993, Great Lakes Dredge & Dock Company monitoring costs, and supervision costs. The district (Great Lakes) hired a subcontractor, Coastal Marine court also ruled that a plan of “no action” for restorTowing Company (Coastal), to tow 500-foot dredge ing the damaged seabed was the appropriate remedy pipes from Boca Grande to Green Cove. Both Great because in the months following the damage, naturLakes and Coastal supplied two tugs each for the al processes had already begun to repair the seabed. Great Lakes appealed the decision based on three project. During the towing operation, one of the pipes was dragged on the sea bottom in the Florida issues. First, they argued that the United States may Keys National Marine Sanctuary, leaving a 13-mile not sue because the federal government has no propscar on the sanctuary floor. A navigational error erty interest in the seabed owned by the state of caused another Coastal tugboat to run aground in Florida. Second, they argued that Great Lakes should shallow water. In freeing the stranded tug, 7,495 not be held vicariously liable for the actions of square meters of sea bottom, consisting mostly of Coastal because it had acted as an independent party. Finally, Great Lakes argued that the analysis of sciencoral and manatee and turtle grass, was destroyed. The U.S., on behalf of NOAA and the State of tific evidence used to assess damage and restoration Florida, sued Coastal and Great Lakes. On the first cost was improper. The United States filed a crossday of trial, Coastal settled its claims with the claim arguing that the “no action” plan that the disUnited States and Florida for $618,484. After this trict court approved was not an appropriate remedy settlement, Florida dropped its claims against Great and that proactive restoration was necessary. Lakes but the federal claims remained. After an eight-day trial, the district court ruled that Great NMSA Authorizes Damages to the U.S. Lakes is strictly and vicariously liable for all dam- The Eleventh Circuit rejected Great Lakes’ conages to the sanctuary under the National Marine tention that the government has no interest in stateSanctuaries Act (NMSA) even though the subcon- owned property. The express language of the Florida tractor had settled and the damages occurred in Keys National Marine Sanctuary Act states that the 2,800 nautical miles of coastal waters in the Florida state waters. Keys “shall be managed and regulations enforced under all applicable provisions of the NMSA.”6 The Legal Action Under the NMSA The National Marine Sanctuaries Act was passed by federal government is in control of enforcing the Congress in 1990 in order to protect special marine NMSA regardless of whether the propert is federal


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Page 13

or state owned. The NMSA clearly states that the U.S. may recover damages for injuries to the sanctuary.7 Further, the Eleventh Circuit held that the factual findings were not erroneous in finding that Great Lakes was vicariously liable for Coastal’s accident and were sufficient to demonstrate causation to impose strict liability on the contractor, Great Lakes. Because Great Lakes was responsible for the venture and for helping Coastal’s vessels maneuver the tows, it was liable for Coastal’s actions and could not claim any “innocent third party” defenses under the NMSA. The third issue on appeal focused on whether the Habitat Equivalency Analysis formula, a form of scientific evidence, is appropriate for assessing the size of the area destroyed. Great Lakes argued that the district court erred by not correctly applying a Supreme Court decision on the use of scientific evidence.8 Under the Federal Rules of Evidence, all scientific evidence must both be relevant and reliable; if the scientific evidence is not relevant and reliable it cannot be introduced at trial. Great Lakes questioned the reliability of the HEA. A 1993 U.S. Supreme Court case set the standard for analyzing the relevancy and reliability of scientific evidence. 9 Applying this standard to the HEA, the Eleventh Circuit ruled that the district Conclusion court did not err when it determined that the HEA The National Marine Sanctuaries Act allows for the was appropriate and admissible. United States to receive damages from those violators who are found to be vicariously liable of U.S. Cross-Claim destroying a marine sanctuary. The statutory scheme Lastly, the court addressed the United States’ cross- under the National Marine Sanctuaries Act does claim. During the first trial, the government suggest- authorize damages to the United States for injuries ed three plans for restoration of the damaged to state owned property. seafloor. The “no action” plan called for nature to restore the area without any help from human intervention. The second plan was a site-regrading plan, in which the hole would be regraded from the sur- ENDNOTES rounding area. The third plan, which was recom- 1. S. Rep. No. 100-595, 2d Sess. 1 (1998). mended by the government, called for filling the hole 2. 16 U.S.C. §§ 1433, 1434 (2001). with sand. The district court found that the second 3. 16 U.S.C. § 1443. and third plans were too risky and would not guaran- 4. 16 U.S.C. § 1443 (c). tee recovery, and selected the “no action” plan, rely- 5. 16 U.S.C. § 1432 (6). ing on evidence that the area would fully recover in 6. 16 U.S.C. § 1443. 70 years. However, the government argued that the 7. 42 U.S.C. § 1443 (a)(1)(A) (2001). district court did not have enough evidence to 8. Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579, 590 (1993). choose the “no action” plan. The Eleventh Circuit agreed and remanded this issue for further findings. 9. Id. at 592-593.


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WATER LOG 2001

2001 Alabama Legislative Update The following is a summary of coastal, wildlife, marine and water resources related legislation enacted by the Alabama Legislature during the 2001 session.

2001 Alabama Laws 634. Approved May 20, 2001.

(H.B. 437) Effective June 18, 2001.

Provides for the protection of the black bear, Ursus americanus, found in coastal Alabama, by prescribing unlawful activities, such as shooting, trapping and harassing, in connection with the black bear and authorizing the Department of Conservation and Natural Resources to issue permits for certain activities related to the black bear, such as scientific research, zoological exhibition and education.

2001 Alabama Laws 635. Approved May 21, 2001.

(S.B. 5) Effective May 21, 2001.

Creates the Alabama Land Recycling and Economic Redevelopment Act which provides a mechanism to implement a voluntary cleanup, assessment and re-use program for contaminated lands and waters of the state. This legislation does not relieve the responsible person or persons from liability imposed by other laws for the illegal disposal of waste or pollution of the land, air and waters of the state. It does encourage the purchase and productive use of otherwise usable properties.

2001 Alabama Laws 695. Approved May 29, 2001.

(S.B. 296) Effective January 1, 2002.

Amends ยง 32-5A-191.3 to create the Alabama Boating Safety Enhancement Act of 2001 to further provide for the offense of operation of a marine vessel under the influence of alcohol or drugs and to further provide for the restriction on issuance of boater certifications and to further restrict the operation of motorized marine vessels by persons who are under the age of 14 years.

2001 Alabama Laws 973. Approved September 28, 2001.

(S.B. 64) Effective January 1, 2002.

Provides for the establishment of on-site wastewater management entities, public and private, for managing decentralized wastewater systems in Alabama and to provide public health and environmental protection through permitting these entities and through enforcement of the permits and rules promulgated by the State Board of Health.


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WATER LOG 2001

Lagniappe

Page 15

(a little something extra)

Around the Gulf . . . In September, the Florida Fish and Wildlife Conservation Commission banned operators of shark diving excursions from using bloody bait to attract sharks. The commissioners noted that, in light of this summer’s regular reminders of the potential tragedy when sharks and swimmers collide, to allow “shark baiting” is simply inviting danger. The Minerals Management Service and Texas A& M University have entered into a cooperative agreement to conduct an archaeological investigation of a 200-year-old shipwreck in the Gulf of Mexico. First discovered last February, the wreck is nearly one half mile beneath the surface of the water, 30 miles off the mouth of the Mississippi River. This will be the first time that a wreck this deep has ever been scientifically excavated in the Gulf of Mexico. Seven universities, including the University of Florida and Rice University in Texas, will share more than $3.5 million in research grants awarded by the U.S. Environmental Protection Agency to study invasive species. The EPA research grants will help to minimize environmental and economic losses associated with invasive species.

Around the Nation . . . EPA Administrator Christie Whitman announced the establishment of a task force in charge of helping agencies protect drinking water supplies from terrorist attacks. Among the tools used to help agencies is a notification system, which alerts authorities of possible contamination of drinking water sources. In August, the Bush Administration promised quick action to protect 29 vanishing plant and animal species by listing them as endangered species. In exchange a coalition of environmental groups agreed not to continue lawsuits involving a few other species. This agreement allows the Fish and Wildlife Service to focus attention and resources back on many plants and animals that are on the verge of extinction. The Marine Conservation Biology Institute announced the winners of the Mia J. Tegner Memorial Research Grants in Marine Environmental History. The grants are among the first ever awarded to help document the composition and abundance of ocean life before humans altered the marine environment. The results of the studies are crucial to help lawmakers, regulators and managers establish efficient conservation efforts. The government of the Cook Islands, in the South Pacific, announced that it has established a whale sanctuary throughout its Exclusive Economic Zone. Covering two million kilometers, the sanctuary is believed to be the largest whale sanctuary declared by an individual government.


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WATER LOG (ISSN 1097-0649) is a result of research sponsored in part by the National Oceanic and Atmospheric Administration, U.S. Department of Commerce, under Grant Number NA86RG0039, the MississippiAlabama Sea Grant Consortium, State of Mississippi, Mississippi Law Research Institute, and University of Mississippi Law Center. The U.S. Government and the Mississippi-Alabama Sea Grant Consortium are authorized to produce and distribute reprints notwithstanding any copyright notation that may appear hereon. The views expressed herein are those of the authors and do not necessarily reflect the views of NOAA or any of its sub-agencies. Graphics by ©Nova Development Corp., ©Corel Gallery, NOAA.

The University complies with all applicable laws regarding affirmative action and equal opportunity in all its activities and programs and does not discriminate against anyone protected by law because of age, creed, color, national origin, race, religion, sex, handicap, veteran or other status.

MASGP-01-004-03

This publication is printed on recycled paper.

WATER LOG

Mississippi-Alabama Sea Grant Legal Program Lamar Law Center, Room 518 University, MS 38677

Vol. 21:3

California Challenges Federal Oil and Gas Leases California v. Norton, 150 F.Supp.2d 1046 (N.D. Cal. 2001). Roy A. Nowell, Jr., 3L A recent federal court ruling has prevented the suspension of oil and gas leases off the coast of California. The controversy involves a decision by the Mineral Management Service (MMS) to suspend oil and gas leases on California's outer continental shelf that were originally issued between 1968 and 1984. A “suspension” of the leases would effectively extend the lease terms that would otherwise expire. California claimed that the federal government must analyze the environmental impacts of potential oil exploration before approving the suspension. The court ruled that the MMS suspensions meet the definition of "federal activity" as defined by the Coastal Zone Management Act (CZMA) and therefore must meet consistency requirements of California’s coastal zone management program. The court's determination effectively halts any possible oil exploration that would have occurred in the lease areas until further environmental studies are completed. The Federal government plans an appeal to the Ninth Circuit Court of Appeals. Water Log will report on the appeal in a future issue.

Water Log 21:3  

Water Log is a quarterly publication reporting on legal issues affecting the Mississippi-Alabama coastal area. Its goal is to increase aware...

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